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Jeffrey Starks v. Dr. Ann M. Dunlap

August 23, 2011

JEFFREY STARKS, PLAINTIFF,
v.
DR. ANN M. DUNLAP, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Judge Robert M. Dow, Jr.,

MEMORANDUM OPINION AND ORDER

Plaintiff Jeffrey Starks has sued Drs. Ann Dunlap, Eileen Couture, Andrew Ting, Sergio Rodriguez and Avery Hart alleging violations of federal law occurring during Plaintiff's pre-trial detention at Cook County Jail ("CCJ") in Chicago. Plaintiff's claims are brought pursuant to 42 U.S.C. §1983. Specifically, Plaintiff argues that, during his time at CCJ, jail officials denied him access to surgery to reverse a temporary colostomy, which he had obtained prior to his incarceration. Defendants have moved for summary judgment [84]. For the reasons set forth below, the Court grants Defendants' motion [84] and dismisses Plaintiff's claims without prejudice.

I.Factual Background

On September 21, 2006, Plaintiff was shot in the pelvic region. Defs.' SOF ¶ 1. As a result of this incident, Plaintiff was taken to Trinity Hospital and then to Christ Hospital, where he underwent surgery on his injury and was given a colostomy. Id. at ¶¶ 2-3. The surgery was performed by Dr. James Doherty ("Dr. Doherty"), and the purpose of the colostomy was to temporarily divert Plaintiff's fecal waste away from a rectal injury that he had sustained, thus allowing the rectal injury to heal. Pl.'s SOF ¶¶ 9-10. Following his surgery, his doctor and nurses instructed Plaintiff on how to care for his colostomy and colostomy bag. Defs.' SOF ¶ 4.

On January 22, 2007, Plaintiff entered Cook County Jail ("CCJ") as a pretrial detainee. Defs.' SOF ¶ 5. While at CCJ, Plaintiff was housed primarily in Divisions 10 and 11. Id. at ¶ 7. There, Plaintiff was provided with colostomy bags when they were needed, and Plaintiff did not need any additional supplies to care for his colostomy. Id. at ¶ 9. Plaintiff attests that prior to being arrested and detained, he was scheduled to have his colostomy reversed, on January 24, 2007, but he was unable to proceed with the surgery because of his arrest. Pl.'s SOF ¶ 8. Defendants contest this assertion, stating there is no factual support in the record to support these claims. Defs.' Resp. to Pl.'s SOF ¶ 8.

Dr. Ann Dunlap first encountered Plaintiff on May 21, 2008, when she examined him and then referred him for colostomy reversal surgery. Defs.' SOF ¶ 11. This examination and referral occurred 14 months after Plaintiff had first arrived at CCJ. Pl.'s SOF ¶ 14. During this examination, Dr. Dunlap also examined Plaintiff's colostomy and found the area clean and with no complications. Defs.' SOF ¶ 13. Plaintiff states in his affidavit that he told his doctors about pain and clogging while at CCJ. Pl.'s Resp. to Defs.' SOF, citing Ex. 1 to Pl.'s SOF (Pl.'s affidavit at ¶¶ 5-9). Plaintiff's affidavit does not specify when he informed his doctor of the pain he experienced, but he maintains that his colostomy caused him to experience significant pain and discomfort. Pl.'s Resp. to Defs.' SOF ¶ 12. Plaintiff attests that the colostomy often became "clogged" and his waste seemed to back up in his large intestine. This problem resulted in pressure in Plaintiff's abdomen that radiated up to his head. Plaintiff attests that he was sometimes forced to stick one of his fingers into his protruding large intestine and physically dig out whatever waste blockage was there to relieve the pressure. In addition, Plaintiff attests that his colostomy bag was extremely uncomfortable, causing him to experience trouble sleeping, and that he was bothered by the unpleasant smell. Pl.'s SOF ¶¶ 2-6. Defendants emphasize, accurately, that Plaintiff has offered no medical evidence prior to October 2008 to support these alleged facts. Defs.' Resp. to Pl.'s SOF ¶¶ 2-6.

On Dr. Dunlap's referral, Plaintiff came to the Department of Colorectal Surgery at Stroger on June 15, 2008 to be evaluated for a colostomy reversal. During that visit, the department ordered a colonoscopy and barium enema, tests that typically are needed before a colostomy reversal. Id. at ¶¶ 35-36. Dr. Dunlap subsequently saw Plaintiff on July 23, 2008, during which time she saw no evidence that Plaintiff's colostomy was clogged. She further testified that Plaintiff did not complain of pain. Defs.' SOF ¶¶ 14-15. Plaintiff agrees that there was no evidence of clogging, but, again citing his affidavit, rather than his deposition, he attests that he did experience pain, of which he claims he informed Dr. Dunlap (though he does not specify when).*fn1 Pl.'s Resp. to Defs.' SOF, citing Pl.'s Ex. 1, Plaintiff's affidavit, ¶¶ 5-9. The record is clear that, despite Plaintiff's testimony during litigation that, at times, he felt a great deal of pain related to his colostomy, Plaintiff did not file a grievance about pain or treatment related to his colostomy until the summer of 2008.

At the time of Plaintiff's incarceration, CCJ had an established grievance procedure available to detainees. The parties agree that Plaintiff had used this procedure in the past. Id. at ¶¶ 26-27. During his time at CCJ, Plaintiff filled out three grievance forms about colostomy-related issues-on July 11, July 13, and July 23, 2008. Id. at ¶¶ 29-33. Plaintiff's July 13, 2008 grievance states "I now believe my colon is infected. I constantly bleed on daily bases [sic] and I'm dealing with extreme pain and it's frustratin [sic]." Pl.'s Resp. to Defs.' SOF, citing Defs.' Ex. 8. Plaintiff's July 13, 2008 and July 23, 2008 grievances were given to Plaintiff's "CRW" (social worker) on August 19, 2008, and were assigned control number 08 X 1509. Defs.' SOF ¶ 35. Plaintiff was provided with a shared response to 08 X 1509 on August 22, 2008. Id. at ¶ 36. Plaintiff subsequently appealed the response on September 1, 2008. Id. at ¶ 37. However, on August 27, 2008, prior to appealing the Department of Corrections' August 22, 2008 decision, Plaintiff commenced this suit by filing a pro se complaint. Id. at ¶ 40. After consideration of Plaintiff's motion for appointment of counsel [4], Plaintiff was provided with counsel on September 9, 2008.*fn2

On October 7, 2008, after the lawsuit in this case commenced, medical staff at the jail noted that Plaintiff suffered from "chronic tape trauma with mixed infection." Defs.' SOF ¶ 16. This incident of chronic tape trauma is the only pain or problem associated with Plaintiff's colostomy found on Plaintiff's medical records. Id. at ¶ 17. According to Defendants, chronic tape trauma is a minor, non-painful condition caused by hygiene problems. Id. at ¶ 18. While Plaintiff agrees that chronic tape trauma is a minor condition associated with inadequate hygiene, he denies that it was not painful, again citing paragraphs 5-9 of his affidavit, in which he describes the general pain he experienced while using a colostomy bag. Pl.'s Ex. 1, Plaintiff's affidavit, ¶¶ 5-9. In order to combat the chronic tape trauma, Plaintiff was prescribed doxycycline, clinamycin and clotrimazone and again instructed on proper wound care. Defs.' SOF ¶¶ 21-22.

On December 21, 2008 Dr. Cintron received a call from the chair of the Department of Surgery, Dr. Richard Kean, who told him to operate on Plaintiff. The surgery occurred two days later on December 23, 2008. Id. at ¶¶ 40-41. Colostomy reversals are generally routine, elective surgeries, and the parties agree that Plaintiff's reversal was elective. Defs.' SOF ¶ 25.

On June 30, 2009, Plaintiff filed the Second Amended Complaint [45] against all of the Defendants. In response, on December 20, 2010, Defendants filed the instant motion for summary judgment [84].

II. Standard of Review

Summary judgment is proper where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Factual disputes that are irrelevant to the outcome of the suit "will not be counted." Palmer v. Marion County, 327 F.3d 588, 592 (7th Cir. 2003) (quotation marks and citations omitted).In determining whether there is a genuine issue of fact, the Court "must construe the facts and draw all reasonable inferences in the light most favorable to the nonmoving party." Foley v. City of Lafayette, 359 F.3d 925, 928 (7th Cir. 2004). To avoid summary judgment, the opposing party must go beyond the pleadings and "set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (internal quotation marks and citation omitted).

A genuine issue of material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. The party seeking summary judgment has the burden of establishing the lack of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is proper against "a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322. The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In other words, the "mere existence of ...


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